This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal Nos.

2013AP330-CR

2013AP331-CR

2013AP332-CR

Cir. Ct. Nos.2010CF110

2010CF184

2010CF321

STATE OF WISCONSIN

IN COURT OF
APPEALS

DISTRICT III

State of Wisconsin,

Plaintiff-Respondent,

v.

William R. Starck,

Defendant-Appellant.

APPEALS
from judgments and an order of the circuit court for Chippewa County:Steven
R. Cray, Judge.Affirmed.

Before Hoover, P.J., Mangerson and Stark, JJ.

¶1PER CURIAM. William Starck appeals judgments
convicting him of three counts of third-degree sexual assault.He also appeals an order denying his
postconviction motion to withdraw his no contest pleas in which he alleged
ineffective assistance of counsel.He
contends his attorney failed to adequately review the evidence against him
before advising him to enter no contest pleas, leaving Starck unaware of
weaknesses in the State’s case.We affirm
the judgments and order.

Background

¶2In the initial complaint (No. 2010CF110), Starck was charged
with two counts of first-degree sexual assault of N.S.H., repeated sexual
assault of K.M.T., and first-degree sexual assault of A.J.H.Two months later, the State filed a second
complaint (No. 2010CF184), charging Starck with first-degree sexual assault of
T.S.B. and first-degree sexual assault of M.M.L.Four months later, the State filed a third
complaint (No. 2010CF321), alleging first-degree sexual assault of B.E.S.The three complaints were scheduled for
separate trials.Three days before the
scheduled trial on the first complaint, Starck’s counsel negotiated a
comprehensive plea agreement.[1]Under the terms of the agreement, the State
reduced the charges to third-degree sexual assault of K.M.T., M.M.L. and
B.E.S.All of the other charges were
dismissed.Starck accepted the plea
agreement and entered no contest pleas to the three reduced charges.The court imposed consecutive sentences
totaling twelve years’ initial confinement and twelve years’ extended
supervision.

¶3Starck filed a postconviction motion to withdraw his no
contest pleas based on his trial counsel’s failure to familiarize himself with
all of the evidence related to each of the three complaints.Specifically, he alleged counsel did not
review the videotaped interviews with the victims in the second and third
complaints and a medical record disclosing A.J.H.’s sexually transmitted
disease.Starck contends:(1) he was not aware of A.J.H.’s disease
at the time he accepted the plea agreement and he would not have accepted the
plea agreement if he had known this information because he could not have
transmitted the disease; (2) he was not aware that B.E.S., in his
videotaped interview, said the sexual touching happened “yesterday,” an
impossibility because Starck was in jail at that time; and (3) in her
videotaped statement, M.M.L. said she talked to K.M.T. before the interview,
which Starck contends shows she knew what the interviewer expected her to
say.He also contends a child who
witnessed suspicious activity, E.J.H., showed a willingness to agree with any
detail the interviewer asked about.The
circuit court denied the motion to withdraw the pleas, concluding Starck had
not established a manifest injustice because he demonstrated neither his counsel’s
deficient performance nor prejudice.The
court found Starck was aware that the central issue in the case was the
credibility of the children and he made a reasoned decision to accept the plea
agreement to reduce his exposure to multiple charges.

Discussion

¶4Whether counsel rendered ineffective assistance is a mixed
question of law and fact.State
v. Nielsen, 2001 WI App 192, ¶14, 247 Wis. 2d 466, 634 N.W.2d
325.The circuit court’s findings of
fact will be upheld unless they are clearly erroneous.However, whether the defendant’s proof is
sufficient to establish ineffective assistance of counsel is a question of law
that we review without deference to the circuit court’s conclusions.Id.To establish ineffective assistance of counsel, Starck must show his
counsel’s performance was deficient and counsel’s errors prejudiced his
defense.See Strickland v. Washington,
466 U.S. 668, 687 (1984).This court
must indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance and Starck must overcome the
presumption that the challenged action might be considered sound trial
strategy.Id. at 689.To establish prejudice, Starck must show a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.See id. at 694.In the context of a motion to withdraw no
contest pleas, he must show that, but for counsel’s error, he would not have
entered the pleas.See State v. Bentley,
201 Wis. 2d 303, 311-12, 548 N.W.2d 50 (1996).A reasonable probability is one that
undermines our confidence in the outcome.Strickland,466 U.S. at 694.

¶5Starck has not established deficient performance from his
counsel’s failure to review all of the evidence relating to all three
complaints before negotiating the plea agreement and urging Starck to accept
it.Counsel reasonably focused his
attention on the first of the cases that would come to trial.He reasonably believed the verdict in the
first case could be dispositive of the other two cases.Counsel negotiated a comprehensive plea
agreement that reduced Starck’s prison exposure to thirty years from 420
years.Starck’s prison exposure from the
first case alone was 240 years.Counsel’s
review of the evidence regarding the initial complaint established sufficient
likelihood of conviction to justify focusing on the comprehensive plea
agreement.Counsel’s representation did
not fall below an objective standard of reasonableness.See id. at 688.

¶6Starck’s argument that he was unaware of A.J.H.’s diagnosis of
a sexually transmitted disease fails for two reasons.First, the charge relating to her was
dismissed.As the circuit court noted,
Starck could not have been prejudiced by that alleged lack of knowledge.Starck’s brief on appeal does not acknowledge
the trial court’s ruling on that point, much less establish that it is
erroneous.Second, the fact that the
victim had a sexually transmitted disease does not conclusively establish that
Starck did not have sexual contact with her.A defense based on her disease and the fact that Starck could not have
transmitted the disease to her would be a weak defense.

¶7Starck next contends his counsel was ineffective for not
knowing or not communicating with Starck about B.E.S.’s credibility because
four-year-old B.E.S. told a social worker that the sexual assault happened “yesterday.”At the postconviction hearing, Starck’s
counsel testified he remembered B.E.S. saying that and was aware the statement
could not be true.Counsel made a
reasonable strategic decision to encourage Starck to accept the plea agreement
despite that defect in B.E.S.’s statement.As noted in State v. Fawcett, 145 Wis. 2d 244, 249, 426 N.W.2d 91 (Ct.
App. 1988), young children cannot be held to an adult’s ability to comprehend
and recall dates and other specifics.From the details provided in the complaint and police reports, counsel
could reasonably believe a jury would not be concerned about B.E.S.’s confusion
as to the time of the assault, and accepting a generous plea agreement was a
better strategy than attempting to undermine B.E.S.’s credibility based on the
time of the offense.

¶8Starck next argues the videotaped interview of M.M.L. could
be used to challenge her credibility because she had spoken with another victim
before the interview and she appeared to be “prepared to offer any detail that
the social worker suggested.”Starck
contends M.M.L. and a non-victim witness, E.J.H., were so impressionable that a
jury would not believe their testimony.As the circuit court noted, “This is a peripheral issue to the
credibility of both of these young persons.”M.M.L.’s discussion with another of the victims before the interview
does not render her account of the assault incredible.

¶9E.J.H. described a scary movie they were watching when he
witnessed suspicious behavior, but could not remember the name of the
movie.When he said it started with a
“P”, the interviewer asked if it was Predator, and E.J.H. readily agreed.His confirmation that they were watching
Predator does not seriously undermine his credibility or establish inordinate suggestibility.Starck’s knowledge or lack of knowledge about
the possibility of cross-examining the witnesses on these peripheral matters
would not reasonably influence the decision of whether to accept the plea
agreement.

¶10Finally, Starck has not established that he would not have
accepted the plea offer had he been aware of all of the alleged weaknesses in
the State’s case.The circuit court
found Starck was aware that the central issue in the case was the children’s
credibility and Starck made a reasonable decision to accept the plea agreement
to reduce his exposure to multiple charges.Starck does not argue, much less demonstrate, that the circuit court’s
finding is clearly erroneous.See Nielsen,
247 Wis. 2d 466, ¶14.In fact, Starck
confirmed in the alternate presentence investigation report that he pled no
contest because he wanted to reduce the risk of being found guilty of all of
the charges at trial.Because Starck
established neither deficient performance nor prejudice from his counsel’s
decisions, he has not established a manifest injustice that would justify
withdrawing his no contest pleas.

By the Court.—Judgments and
order affirmed.

This opinion will not be
published.SeeWis. Stat. Rule
809.23(1)(b)5. (2011-12).

[1] At
the time the State filed its brief, these appeals had not been
consolidated.Parts of the State’s brief
faults Starck’s brief because it argues issues that relate to the second and
third complaints.The appeals were
subsequently consolidated with the State’s consent, but the State did not
redact the portions of its brief that were no longer applicable.